Constitutional Unamendability and Comparative Method

The idea of an unconstitutional constitutional amendment is apt to puzzle a traditional Anglo-American constitutional lawyer.  It is thought to involve an inherent paradox or at least to be deeply undemocratic, denying to the people control of their own constitutional future. Yet it is widely adopted globally in both explicit and implicit forms. In this paper I will examine Yaniv Roznai’s defence of the doctrine in his recent book Unconstitutional Constitutional Amendment.  I will argue that Roznai successfully unscrambles the apparent conceptual confusion in the idea of an unconstitutional constitutional amendment.  However, he does not successfully show that the recognition of a doctrine of unamendability is a necessary consequence of constitutionalism, at least in its substantive and implicit forms.  A full justification for a doctrine of unamendability depends, more than Roznai makes explicit, on the nature of a given constitutional order. Further, the argument does not provide a sufficient justification for entrusting the judiciary with the power of enforcing an implicit doctrine of unamendability. Lastly, I will reflect on the limits of this argument in the light of comparative method.  Roznai’s argument is global in its reach and is accompanied by impressive comparative research.  Yet it is notable that his method are argumentation are deductive and that his comparative work serves to illustrate rather than to generate his conceptual claims.  I will suggest therefore that successful engagement between constitutional theory and comparative study requires taking comparison seriously at the point of theory formation rather than reliance upon comparison only after the fact and by way of illustration.

Adrienne Stone holds is Redmond Barry Distinguished Professor at Melbourne Law School where she is also a  Kathleen Fitzpatrick Australian Laureate Fellow, and Director of the Centre for Comparative Constitutional Studies. She researches in the areas of constitutional law and constitutional theory with particular attention to freedom of expression. She has published widely in international journals including in the International Journal of Constitutional Law, Constitutional Commentary,  the Toronto Law Journal and in the Oxford Journal of Legal Studies.  With Cheryl Saunders AO she is editor of the Oxford Handbook on the Australian Constitution (2018)  and withFrederick Schauer she is editor of the forthcoming Oxford Handbook on Freedom of Speech. She is First Vice President of the International Association of Constitutional Law and is an elected Fellow of the Academy of Social Sciences in Australia and  Australian Academy of Law. Through the Centre for Comparative Constitutional Studies she is extensively engaged with government and non-governmental organisations. She has taught at law schools in Australia, Europe, the United States and Canada including (in 2018) as a Visiting Professor at Université Paris 1 Panthéon-Sorbonne and delivered papers and lectures by invitation at universities in Australia, North America, Europe and Asia.

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